Western States Water Council 2005 Report

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Herbicides In Headwaters, Inc. v. Talent Irrigation District, the United States Court of Appeals for the 9th Circuit Court of Appeals, on March 12th, held that by applying the aquatic herbicide Magnacide H to irrigation canals without first obtaining a NPDES permit, the irrigation district (TID) had violated the Clean Water Act (CWA). The ruling designated irrigation canals as "waters of the United States." Overturning a district court decision, the 9th Circuit that even thought Magnacide H is subject to the labeling and application requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), "The EPA - approved label under FIFRA did not eliminate TID's obligation to obtain a NPDES permit. "" On April 20th, Bill McDonald, Acting Commissioner of the Bureau of Reclamation, wrote James Hanlon, Acting Deputy Assistant EPA Administrator for Water, asking for assistance in developing an immediate administrative solution. The letter states "The Court of Appeal's decision -- coming, as it did, just a few weeks before the start of the irrigation season -- has created significant problems for all Reclamation projects.... The canals involved in this litigation, to which the herbicide was applied by TID, are features of the Talent Division of the Bureau of Reclamation's Rogue River Project in Oregon. TID operates and maintains these federally -owned canals pursuant to a contract with the Bureau of Reclamation (Reclamation). The operation and maintenance of the federally -owned canals in Reclamation projects by our water user contractors is typical throughout the West. In addition, some project canals, or portions thereof, are still operated and maintained by Reclamation itself. There are literally thousands of miles of canals in Reclamation's projects." The letter continues, "Both Reclamation and our irrigation districts will need to start their canal weed control activities as early as mid -May. These weed control activities are essential to the operation of our projects. Absent appropriate control of aquatic weeds, nearly all systems would experience some degree of operational difficulty and increased costs. In large projects which are highly automated, lack of weed control could even result in an inability to deliver project water supplies this summer because automated trash racks and screens, automated gates and check structures, and other automated equipment and facilities could become clogged with weeds and inoperable." The letter adds, "It is essentially impossible for our irrigation districts to apply for and obtain individual NPDES permits at this late date. Thus, the situation is critical for Reclamation and its water users. As we discussed when we spoke by telephone, Reclamation urges the Environmental Protection Agency to move rapidly to identify available administrative solutions to this problem for this summer. We will greatly appreciate any guidance and assistance which you can provide." In an April 27th letter to EPA Administrator Christine Whitman, Rep. "Butch" Otter (R -ID) and other western representatives stated, "On behalf of the thousands of water users in our respective states that rely on the delivery of water - -which is in especially low supply this year -- through canals, laterals, and ditches, as well as the remainder of our citizens who rely on the responsible use of aquatic herbicides, pesticides, and other registered products, we request your immediate assistance. Water delivery organizations must be provided with adequate legal protection to assure that they will 39Western States Water, Issue #1406, April 27, 2001. t,